Citation Nr: 9915954
Decision Date: 06/10/99 Archive Date: 06/21/99
DOCKET NO. 96-03 592 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
post-traumatic stress disorder.
2. Entitlement to an evaluation in excess of 20 percent for
residuals of a herniated nucleus pulposus with low back pain
and spina bifida occulta.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran had active service from October 1946 to March
1948, from September 1948 to March 1959 and from March 1959
to May 1967. This matter came before the Board of Veterans'
Appeals (hereinafter "the Board") on appeal from a July 1994
rating decision of the New Orleans, Louisiana Regional Office
(hereinafter "the RO") which, in pertinent part, granted
service connection for post-traumatic stress disorder and
assigned a noncompensable disability evaluation and granted
service connection for residuals of a herniated nucleus
pulposus with low back pain and spina bifida occulta with a
10 percent disability evaluation. A January 1996 rating
decision increased the disability evaluation assigned for the
veteran's service-connected post-traumatic stress disorder to
10 percent.
In April 1997, the Board remanded this appeal to the RO to
inquire whether the veteran was in receipt of disability
compensation from the Social Security Administration, to
obtain private and/or Department of Veterans Affairs
(hereinafter "VA") treatment records and to afford the
veteran VA psychiatric and orthopedic examinations. A July
1998 rating decision, in pertinent part, increased the
disability evaluation assigned for the veteran's service-
connected residuals of a herniated nucleus pulposus with low
back pain and spina bifida occulta to 20 percent. The
veteran has been represented throughout this appeal by the
Veterans of Foreign Wars of the United States.
The Board notes that in the April 1999 informal hearing
presentation, the accredited representative advanced
contentions on appeal which the Board has construed as a
claim for a total rating for compensation purposes based on
individual unemployability. As this issue has neither been
developed nor certified for review on appeal, it is referred
to the RO for appropriate action.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's post-traumatic stress disorder is
productive of no more than moderate symptoms.
3. The veteran's post-traumatic stress disorder is
productive of no more than definite social and industrial
impairment.
4. The veteran's lumbar spine disorder is productive of no
more than severe pain and functional impairment.
CONCLUSIONS OF LAW
1. The schedular criteria for a 30 percent evaluation for
post-traumatic stress disorder have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991 & Supp. 1998); 38 C.F.R. Part 4,
including §§ 4.3, 4.7 and Diagnostic Code 9411 (1996); 38
C.F.R. Part 4, including §§ 4.3, 4.7 and Diagnostic Code 9411
(1998).
2. The schedular criteria for a 40 percent for residuals of
a herniated nucleus pulposus with low back pain and spina
bifida occulta have been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991 & Supp. 1998); 38 C.F.R. Part 4, including §§ 4.3,
4.7, 4.40, 4.45, 4.59 and Diagnostic Code 5293 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, it is necessary to determine if the veteran has
submitted well-grounded claims within the meaning of 38
U.S.C.A. § 5107(a) (West 1991 & Supp. 1998), and if so,
whether the VA has properly assisted him in the development
of his claims. A review of the record indicates that the
veteran's claims are plausible and that all relevant facts
have been properly developed. Accordingly, an additional
remand, in order to allow for further development of the
record, is not appropriate.
The Board notes that according to a recent decision of the
United States Court of Appeals for Veterans Claims
(hereinafter "the Court"), because this appeal ensues from
the veteran's disagreement with the ratings assigned in
connection with his original claim, the potential for the
assignment of separate, or "staged," ratings for separate
periods of time, based on the facts found, must be
considered. Fenderson v. West, 12 Vet. App. 119 (1999) In
this case, the RO has not assigned separate staged ratings
for any of the disabilities at issue.
The Board observes that the veteran has not been prejudiced
by the RO's referring to his claims, as to these matters, as
"increased [evaluations]" although the appeals have been
developed from his original claim. In this regard, in both
the original rating decision of July 1994 and pursuant to the
January 1996 rating decision, which increased the disability
evaluation assigned for the veteran's service-connected post-
traumatic stress disorder, and the July 1998 rating decision,
which increased the disability evaluation assigned for the
veteran's service-connected residuals of a herniated nucleus
pulposus with low back pain and spina bifida occulta, the RO
addressed all of the evidence of record and the increased
evaluations granted pursuant to the latter rating decisions
were made effective back to the date of the original grant of
service connection. Thus, the veteran was not harmed by the
absence of "staged" ratings. See Fenderson.
I. Post-Traumatic Stress Disorder
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155
(West 1991 & Supp. 1998); 38 C.F.R. Part 4 (1998). The Board
notes that the regulations governing the evaluation of mental
disorders were amended as of November 7, 1996. See 61 Fed.
Reg. 52695-52702 (October 8, 1996) (to be codified at 38
C.F.R. §§ 4.125-4.130). The Board observes that the
regulations applicable as of November 7, 1996, are more
favorable to the pending claim for an increased rating.
Therefore, the Board concludes that the appellant's claim
will be evaluated under the new regulations governing post-
traumatic stress disorder. See Karnas v. Derwinski, 1 Vet.
App. 308, 313 (1991) (when there has been a change in an
applicable regulation after a claim has been filed, but
before final resolution, the regulation most favorable to the
claimant must be applied). The regulations in effect as of
November 7, 1996, provide that a 10 percent evaluation is
warranted for occupational and social impairment due to mild
or transient symptoms which decrease work efficiency and
ability to perform occupational tasks only during periods of
significant stress, or; symptoms controlled by continuous
medication. A 30 percent evaluation requires occupational
and social impairment with occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks (although generally functioning
satisfactorily, with routine behavior, self-care, and
conversion normal), due to such symptoms as: depressed mood,
anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events.). A 50 percent
evaluation is warranted for occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short and long term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships. 38 C.F.R. Part 4, Diagnostic Code 9411
(1998).
Under the regulations in effect prior to November 7, 1996, a
10 percent evaluation is warranted for emotional tension or
other evidence of anxiety productive of mild social and
industrial impairment. A 30 percent evaluation requires
definite impairment in the ability to establish or maintain
effective and wholesome relationships with people and
psychoneurotic symptoms resulting in such reductions in
initiative, flexibility, efficiency and reliability levels as
to produce definite impairment. A 50 percent evaluation
requires that the veteran's ability to establish or maintain
effective or favorable relationships with people be
considerably impaired and that his reliability, flexibility
and efficiency levels be so reduced by reason of
psychoneurotic symptoms as to result in considerable
industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code
9411 (1996). In Hood v. Brown, 4 Vet. App. 301 (1993), the
Court stated that the term "definite" as utilized in
38 C.F.R. § 4.132 (1993) was "qualitative" in character,
whereas the other descriptive terms were "quantitative" in
character, and invited the Board to "construe" the term
"definite" in a manner that would quantify the degree of
impairment for purposes of satisfying the Board's statutory
duty to articulate the "reasons and bases" for its decision
under 38 U.S.C.A. § 7104(d)(1). The Board subsequently
requested an opinion from the Office of the General Counsel
of the VA. In a precedent opinion dated in November 9, 1993,
the General Counsel concluded that the term "definite" is
to be construed as denoting "distinct, unambiguous and
moderately large in degree." It represents a degree of
social and industrial impairment that is "more than
moderate, but less than rather large." O.G.C. Prec. 9-93
(Nov. 9, 1993). The Board is bound by this interpretation of
the term "definite" when applying the provisions of 38
C.F.R. § 4.132, Diagnostic Code 9411 (1996). 38 U.S.C.A.
§ 7104(d)(1) (West 1991 & Supp. 1998).
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (1998).
The veteran underwent a VA post-traumatic stress disorder
examination in March 1994. He reported that he would still
have "attacks" and anxiety. The examiner reported that the
veteran was alert and oriented to time, place, person and
situation. The examiner noted that the veteran's mood was
anxious at times and that his affect was euthymic. It was
observed that the veteran's thought process was goal directed
and that he had no auditory or visual hallucinations and no
homicidal or suicidal ideation. The examiner reported that
the veteran's judgment and insight were fair. It was noted
that the veteran tended to veer off into more pleasant
subjects such as good times he had at a jungle warfare
training school. As to an impression, the examiner noted
that the veteran was not psychologically minded and that he
tended to use the defense of dissociation when he would get
onto stressful subjects. The diagnoses included post-
traumatic stress disorder, mild, delayed and generalized
anxiety disorder and panic attacks.
A March 1994 VA psychological testing report noted that the
veteran indicated that he had experienced chronic stress and
worry about his health for the last several years. It was
observed that the veteran reported no history of flashbacks,
but indicated that he did have to work to actively block
thoughts and memories. The examiner noted that the veteran
was alert, cooperative and fully oriented to person, place
and time. The veteran's mood was predominantly euthymic and
his affect was slightly tense. The examiner reported that the
veteran's memory appeared intact in the recent and immediate
realms, with vagueness noted in remote recall of service
events. The examiner noted that there was no evidence of a
thought disorder and that there were no reported audio or
visual hallucinations or delusions. There was also no
indication of suicidal or homicidal ideation. The diagnoses
included generalized anxiety disorder and undifferentiated
somatoform disorder.
A January 1996 statement from Dr. Meyers indicated that the
veteran's nervous condition had, at times, necessitated
hospitalization with symptoms that seemed to be associated
with other causes.
Treatment reports from the Green Clinic dated in April 1997
indicated diagnoses including panic attacks. A May 1997
report noted that the veteran had multiple problems including
severe depression and other psychosomatic disorders. The
diagnoses, at that time, included psychosomatic disorder with
depression.
The veteran underwent a VA psychiatric examination in June
1997. He reported that he last worked eight years ago and
that he had stopped working due to his "medical condition".
The veteran complained of restless sleep because of having to
go to the bathroom. He also reported that he did not dream
anymore and that his appetite was okay. It was observed that
the veteran indicated that he would become depressed from
time to time and noted that he talked about having increasing
panic. The veteran also reported that he had felt that there
was a third person in his house and that such feeling placed
him in a posture of hypervigilence on occasion. He reported
that he just sat around and watched television all day as he
felt "very weak". The examiner reported that the veteran
was verbal, alert and oriented for the most part. The
examiner related that the veteran's affect was somewhat
restricted and that he denied any homicidal or suicidal
ideation as well as any hallucinations. The veteran's memory
and concentration were clearly impaired and his judgment was
also noted to be impaired. The examiner indicated that there
was some indication of a thought disorder, but that the
veteran was not frankly paranoid. It was noted that reality
testing could become tenuous at times. The diagnoses
included post-traumatic stress disorder, delayed; anxiety
disorder, not otherwise specified, and dementia, not
otherwise specified. The GAF score was 60 (recurrent panic
attacks, few friends, significant difficulty in concentrating
and remembering data). The examiner commented that in his
opinion, the veteran's current rating for social and
industrial impairment as a result of the post-traumatic
stress disorder was the appropriate one. The examiner also
remarked that the veteran was probably unemployable due to
his mental condition alone and that such level of social and
industrial impairment was caused, for the most part, by the
veteran's anxiety disorder.
In a June 1997 lay statement, the veteran's wife reported
that the veteran had been treated for various disorders,
including extreme anxiety, on multiple occasions from October
1996 to April 1997. She indicated that the veteran had not
been employed for about ten years because of his "physical
condition".
It is observed that the clinical and other probative evidence
of record indicates that the veteran suffers from
symptomatology reasonably shown to be productive of
manifestations warranting a 30 percent evaluation under the
new regulations. 38 C.F.R. Part 4, Diagnostic Code 9411
(1998). The Board notes that such regulations indicate that
a 30 percent evaluation is warranted for occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversion normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, mild memory loss (such as forgetting names,
directions, recent events.). The Board observes that the
most recent June 1997 VA psychiatric examination report noted
that the veteran complained of restless sleep. He also
reported that he would become depressed from time to time and
talked about having increasing panic. The veteran also
reported a feeling of a third person in his house which
placed him in a posture of hypervigilance on occasion. His
affect was somewhat restricted. The examiner further
reported that the veteran's memory and concentration were
clearly impaired and that his judgment was also impaired.
The examiner noted that there was some indication of a
thought disorder, but that the veteran was not frankly
paranoid. It was observed that reality testing could become
tenuous. The diagnoses included post-traumatic stress
disorder, delayed; anxiety disorder, not otherwise specified;
and dementia, not otherwise specified.
Significantly, the June 1997 VA examiner assigned a GAF score
of 60 for recurrent panic attacks, few friends and
significant difficulty in concentrating and remembering data.
A GAF of 60 is defined as "moderate symptoms (e.g., flat
affect, circumstantial speech, occasional panic attacks) OR
any moderate impairment in social, occupational, or school
functioning (e.g., few friends, conflict with peers or co-
workers)." The Board points out that the criteria for a GAF
of 60 most closely approximate the criteria for a 30 percent
rating under the new provisions of Diagnostic Code 9411. In
light of the examination findings discussed above and the GAF
of 60, the Board finds that a 30 percent rating is warranted
for the veteran's post-traumatic stress disorder under the
new diagnostic criteria.
The Board also notes that the veteran, in a VA Form 9 (Appeal
to Board of Veterans' Appeals) received in December 1995,
related that his post-traumatic stress disorder should be
rated 30 percent disabling. Moreover, the criteria for a GAF
of 60 supports finding that the veteran's post-traumatic
stress disorder is productive of moderate symptoms and the
veteran's post-traumatic stress disorder was described as
mild in March 1994. Therefore, the Board finds than the
veteran's post-traumatic stress disorder is productive of no
more than definite social and industrial impairment under the
old criteria of Diagnostic Code 9411. See O.G.C. Prec. 9-93
(Nov. 9, 1993).
Furthermore, the June 1997 VA examiner commented that in his
opinion, the veteran's current rating for social and
industrial impairment as a result of post-traumatic stress
disorder was the appropriate one. The examiner also remarked
that the veteran was probably unemployable due to his mental
condition alone and that such level of social and industrial
impairment was caused, for the most part, by the veteran's
anxiety disorder. The Board observes that the veteran is
solely service-connected for post-traumatic stress disorder
and is not service-connected for any other psychiatric
disorder. Therefore, the Board must consider the
symptomatology referable to the veteran's service-connected
post-traumatic stress disorder. The examiner's reference to
unemployability is apparently referable only to the diagnosed
anxiety disorder, which the examiner diagnosed in addition to
post-traumatic stress disorder. Additionally, the
preponderance of the evidence is against finding that the
veteran's post-traumatic stress disorder is productive of
circumstantial, circumlocutory, or stereotyped speech,
difficulty in understanding complex commands, impairment in
the retention of only highly learned material, forgetting to
complete tasks, and disturbances of motivation and mood.
II. Residuals of a Herniated Nucleus Pulposus with
Low Back Pain and Spina Bifida Occulta
Under Diagnostic Code 5293, a 20 percent evaluation is
warranted when the disability is moderate with recurring
attacks; a 40 percent evaluation is warranted when the
disability is severe with recurring attacks, with
intermittent relief; and a 60 percent evaluation is warranted
when the disability is pronounced with persistent symptoms
compatible with sciatic neuropathy with characteristic pain
and demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site of diseased disc,
with little intermittent relief.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage
and the functional loss, with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1998).
A February 1994 private medical report from E. C. Meyers,
M.D., indicated that the veteran had two ruptured discs in
his back which caused extreme pain and that the veteran had
degenerative arthritis of the back.
The veteran underwent a VA general medical examination in
March 1994. He complained of "rough generalized
degenerative joint disease". The examiner indicated that
the veteran did not appear to be in pain or distress and that
he walked with a normal gait and carriage. The examiner
noted that the veteran's spine appeared to be straight.
There was no point tenderness. As to range of motion of the
lumbar spine, forward flexion was 90 degrees, extension
backward was 30 degrees, lateral flexion was 35 degrees,
bilaterally, and rotation was 35 degrees, bilaterally. The
examiner indicated that such motions were essentially
painless. The diagnoses included osteoarthritis compatible
with age.
A January 1996 statement from Dr. Meyers indicated that he
had treated the veteran for severe, disabling osteoarthritis.
Dr. Meyers indicated that the veteran's arthritis was
complicated by the fusing of vertebrae in his neck, back,
shoulder joints, knees, arms, hands and feet. It was noted
that such fusions had resulted in bone spurs which had
broken, thus resulting in constant pain. Dr. Meyers
indicated that X-rays taken of the veteran showed the worst
case he had ever seen of bone fusions, spurs and broken
spurs.
The veteran underwent a VA spine examination in June 1997.
He indicated that he had intermittent low back pain which was
made worse with bending and walking short distances. The
examiner noted that there was tenderness in the L4-L5
vertebral region. The examiner also indicated that there
were no postural deformities or fixed deformity and that the
musculature of the veteran's back was normal. The examiner
reported that the range of motion provided was both active
and passive range of motion and that such was limited by
pain. As to the lumbosacral spine, forward flexion was 45
degrees, backward extension was 15 degrees, left and right
lateral flexion was 20 degrees and left and right rotation
was 20 degrees. The examiner indicated that at the extreme
range of motion in all directions for the lumbosacral spine,
the veteran had severe pain. The examiner reported that
there was no neurological involvement. The diagnoses
included arthralgia of the thoracic spine and lumbar disc
disorder. The examiner commented that he felt the veteran
was disabled to work due to the severe low back pain and also
the pain in his neck which interfered with his driving.
The Board has weighed the evidence of record. In February
1994, Dr. Meyers related that the veteran's ruptured discs in
his back caused extreme pain. At the VA spine examination in
June 1997, the veteran indicated that he had intermittent low
back pain which was made worse with bending and walking short
distances. The examiner reported that the range of motion
provided was both active and passive range of motion and that
such was limited by pain. The examiner indicated that at the
extreme range of motion in all directions for the lumbosacral
spine, the veteran had severe pain. While the examiner
reported that there was no neurological involvement, the
examiner commented that he felt the veteran was "disabled to
work" due to the severe low back pain and also the pain in
his neck which interfered with his driving.
In light of the evidence discussed above, the Board finds
that the pertinent evidence currently of record is in
equipoise as to whether there is a reasonable basis for
concluding that the veteran's service-connected back
disability is productive of severe pain and severe functional
impairment under Diagnostic Code 5293. Additionally, it is
felt that to further delay reaching a final decision on the
appeal of the claim in question by remanding in order to try
to obtain additional evidence would not be in the best
interests of the veteran. Therefore, resolving doubt in the
veteran's favor, the Board finds that a 40 percent evaluation
is warranted. 38 U.S.C.A. § 5107(b).
As for whether the criteria for a 60 percent evaluation under
Diagnostic Code 5293 are met, the Board notes that the
probative medical evidence is against finding that the
veteran's service-connected back disability is productive of
persistent symptoms such as demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to
site of diseased disc. The June 1997 VA examination revealed
no neurological impairment; and the veteran complained of
intermittent pain at that examination, rather than pain with
little intermittent relief. Therefore, the Board finds that
an evaluation in excess of 40 percent for residuals of a
herniated nucleus pulposus with low back pain and spina
bifida occulta is not warranted.
ORDER
A 30 percent evaluation for post-traumatic stress disorder is
granted, subject to the laws and regulations governing the
award of monetary benefits.
A 40 percent evaluation for residuals of a herniated nucleus
pulposus with low back pain and spina bifida occulta is
granted, subject to the provisions governing the award of
monetary benefits.
L. JENNIFER LANE
Acting Member, Board of Veterans' Appeals